South Carolina Lawyers Weekly
The South Carolina Supreme Court has used two cases on the the state’s Uniform Contribution Among Tortfeasors to underscore a basic legal principle: If someone is not a defendant in a lawsuit, they cannot have any fault attributed to them under the statute.
The 2005 statute modified joint and several liability in tort cases with more than one defendant to include a system where the fact-finder apportions 100 percent of the fault to the plaintiff and each defendant, with corresponding damages. The act left joint and several liability in place for defendants who are more than 50 percent at fault.
But the Supreme Court had never before been asked to decide whether a party who may have contributed to a plaintiff’s injury could be included in the at-fault calculation if they were not named as a defendant. That is, until two cases asking essentially the same question before appeared before the high court over the past several years.
In separate opinions handed down on April 26, a majority of the Supreme Court said the plain language of the UCAT Act makes it clear that lawmakers in the South Carolina Legislature meant for the act to apply to “defendants,” meaning that if someone is not a defendant they cannot be included in the calculation.
Civil litigators said the rulings could drive more defendants to settle lawsuits out of fear they will be left paying a larger portion of the damages if the case goes to trial.
Reginald Gay of the McNair Law Firm in Greenville said he had been following the cases before the Supreme Court because of their potential implications.
“The ruling here is going to make it more likely that I’ll judge lawsuits differently based on the potential exposure,” Gay said. “It’s a lot different if an at-fault third party can be expected to kick in money at trial than if my client is going to have to pay the full amount of damages. Now we know judges can’t instruct a jury that the at-fault third party can be considered in the damages percentages.”
Empty chair
The first case before the court presented an apparent conflict between the state’s Workers’ Compensation Act and the UCAT Act. Specifically, South Carolina employs a no-fault workers’ compensation framework but the UCAT Act seeks to allocate fault among all of the parties involved in a tort action.
The underlying dispute in Machin v. Carus Corp. involved a lawsuit against the manufacturer of a sewer deodorizing product called Totalox. John Machin, an employee of the Town of Lexington, sued Carus Corp. in federal court for damages related to injuries he suffered after he was inadvertently exposed to the chemical. Machin received a workers’ compensation settlement from the town, which shielded it from any subsequent litigation.
During the course of litigation against Carus Corp., Machin acknowledged that the amount of compensation he received from his employer was inadmissible. But he sought to present evidence related to other issues involving workers’ compensation.
Meanwhile, Carus Corp. employed an empty-chair defense based on the theory that while the town was not named as a defendant, it bore the fault for Machin’s injuries because it had failed to heed warnings posted on containers holding the chemical.
At trial, U.S. District Judge Joseph Anderson allowed Carus Corp. to make its empty-chair defense. But Anderson ruled that the parties were not allowed to mention workers’ compensation.
After a jury awarded a defense verdict to Carus Corp., Machin moved for a new trial, arguing the federal court erred in refusing any argument or jury instructions about workers’ compensation while allowing the empty-chair defense.
At that point, Anderson asked the Supreme Court to address whether a jury can hear an explanation of why an employer is not part of a lawsuit and whether a defendant could make an empty-chair defense suggesting the employer was at fault. But the most important question presented by Anderson was whether the employer could be included in the fault calculation.
‘Defendants’ matter
Writing for the court, Justice John Kittredge said juries should be allowed to hear about why the employer is not part of the lawsuit and that the Workers’ Compensation Commission has assessed the employer’s legal responsibilities for the employee’s injuries. Kittredge also said defendants can present an empty-chair defense such as the one presented by Carus Corp.
But Kittredge said South Carolina’s UCAT Act does not allow non-party employers to be included in the fault calculation. Because the South Carolina Supreme Court had not directly addressed the question before, Kittredge turned to a 1997 decision in a workers’ compensation case out of the Tennessee Supreme Court. In Snyder v. LTG Lufttechnische, the Tennessee Supreme Court held that defendants are permitted to introduce evidence at trial of an employer’s improper maintenance and alteration of a machine that injured a worker. But the jury was not allowed to assess fault against the non-party employer.
“We find the Snyder approach to be workable and aligned with South Carolina law,” Kittredge said.
Kittredge noted that the plain language of South Carolina’s UCAT Act says, “In determining the percentage attributable to each defendant, any fault of the plaintiff . . . will be included so the total of the percentages of fault attributed to the plaintiff and to the defendants must be 100 percent.”
Kittredge said the Legislature’s repeated use of the word “defendants” means only defendants may be listed on a jury form and included in the allocation of fault.
Kittredge’s opinion was joined by Chief Justice Donald Beatty, Justice Kay Hearn and Acting Justice Jean Toal. Acting Justice Costa Pleicones filed a dissent, largely based on the idea that there is a difference between apportioning fault to an employer and assigning liability.
John Nichols of Bluestein Nichols Thompson & Delgado said the majority reached the correct decision because in drafting the UCTA Act, lawmakers specifically chose to use the narrow term “defendants” rather than something more general like “potential tortfeasors.”
Carus Corp. was represented by Gray Culbreath and Jessica Waller of Gallivan, White & Boyd in Columbia. Culbreath and Waller did not respond to requests for comment.
Parallel ruling
Much of the legal reasoning employed by Kittredge in Machin was reflected in the Supreme Court’s separate opinion in Smith v. Tiffany. In that case, the dispute stemmed from a 2012 traffic collision.
Corbett Mizzell was pulling out of a gas station parking lot on U.S. 178 when his car struck the vehicle driven by Walter Smith. Mizzell claimed he only hit Smith because a tractor-trailer driven by Norman Tiffany, an employee of Brown Trucking Co. was stopped on the nearby shoulder, which blocked Mizzell’s view of oncoming traffic.
Smith sued Tiffany and Brown Trucking, claiming their negligence contributed to the accident. Mizzell’s liability carrier paid the limits of his policy to Smith in exchange for a covenant not to execute in favor of Mizzell.
But as the case progressed, Smith sought to have Mizzell included in the at-fault calculation. The trial judge rejected that request and awarded Mizzell summary judgment.
The Supreme Court ultimately upheld the lower court’s ruling. Again writing for the court, Kittredge said the analysis was straightforward. Because Mizzell is not subject to liability based on the covenant not to execute, he is not able to be included in the calculation under the UCTA Act.
“In affirming the trial court, we are likewise constrained by the plain language meaning of the unambiguous language of the act, “Kittredge said. “While we appreciate the equity-driven argument of the appellants, we must honor legislative intent as clearly expressed in the Act, lest we run afoul of separation of powers.”
Smith was represented by McRoy Shelley and Steven Moon of Rogers, Townsend & Thomas in Columbia. Tiffany and Brown Trucking were represented by attorneys from Pierce, Herns, Sloan & Wilson in Charleston, the Kennedy Law Firm in Batesburg-Leesville, and King, Love & Hupfer in Florence.
Opinion digests of the 19-page opinion in Machin v. Carus Corp. (Lawyers Weekly No. 010-025-17) and the 23-page opinion in Tiffany v. Smith (Lawyers Weekly No. 010-026-17) are available at sclawyersweekly.com.
Follow Jeff Jeffrey on Twitter @SCLWJeffrey
